IN THE SUPERIOR COURT OF PENNSYLVANIA

EASTERN DISTRICT

NO. 2164 ED 2015

Tamara Sweeney

Appellant

v.

Thomas J. Sweeney

Appellant

BRIEF FOR APPELLANT

APPEAL FROM THE ORDER OF JUDGE DANIELE

ENTERED ON JUNE 18, 2015 GRANTING DECREE IN DIVORCE AND
ORDERING EQUITABLE DISTRIBUTION

____________________________________________________________

Tamara Sweeney
PRO SE

1204 Red Rock Circle

Royersford, PA 19468

215.601.3234
 TABLE OF CONTENTS

Table of Citations……………………………………………………….……..…1

Statement of Jurisdiction…...……………………………………………….......2

Order or Other Determination in Question……………………………….……3

Statement of Scope and Standard of Review…………………….……...…...4

Statement of Questions Involved………………………………….………...…5

Statement of the Case…………………………………………………….….....6

A. Form of Action

B. Procedural History of the Case

C. Presiding Judge

D. Statement of the Facts

Argument………………………………………………………………………….7

A. Equitable Distribution/Business Valuation

B. Alimony Issues
 C. Husband’s Forgery/Credibility Issues

D. Duress And Coercion of Wife

Summary of Argument………………………………………………..………....8

Conclusion—Precise Relief Sought………………………………………...….9

Appendix……………………………………………………………………..…..10
 TABLE OF CITATIONS

Statutes

Pennsylvania Domestic Relations Code (“the Divorce Code”), 23

Pa.C.S. § 3101 et seq.
a. Legislative findings and intent, 23 Pa.C.S. § 3102
b. Jurisdiction and venue, 23 Pa.C.S. § 3104
c. Equitable distribution of marital property, 23 Pa.C.S. § 3501 et seq.
d. Effect of agreements, 23 Pa.C.S. § 3105
e. Equity power of Divorce Court, 23 Pa.C.S. § 3323(f)
f. Grounds established, 23 Pa.C.S. § 3323(g) (new)
g. Counsel fees, 23 Pa.C.S. § 3702

Pennsylvania Rules of Civil Procedure, 42 Pa.C.S.

a. Equitable distribution of marital property, Pa.R.C.P. 1920.1 et seq.
b. Domestic Relations Actions, generally, Pa.R.C.P. 1930.1 et seq.

Internal Revenue Code (“IRC”), 26 U.S.C. § 1

a. Sale of principal residence, IRC § 121

Additional Statutes
18 Pa.C.S. § 4101
18 Pa.C.S. § 4904
23 Pa. C.S. § 3332
23 Pa. C.S.A. § 3323
23 Pa.C.S.A. § 3502(a)(1-11)
23 Pa.C.S.A. §3701(d)
23 Pa. C.S. §3505 (b)
Fed.R.Civ.P. 26 (b)(1)
Pa.R.C.P.1920.33
Pa. R.C.P, Rule 1920.51(d)
Pa. Rule 1920.42. Affidavit & Decree under § 3301(c) of the Divorce Code

Cases

Aletto v. Aletto, 537 A.2d 1383 (Pa.Super. 1988); and Rev. Rul. 59-60
Ashworth v. Commissioner, TC Memo 1990-423
Baker v. Baker, 861 A.2d 298 (Pa. Super. 2004)
Balicki v. Balicki, 4 A.3d 654 (Pa. Super. 2010)
 Cases (Con’t)

Brown v. Brown, 863 S.W.2d 432 (Tenn. Ct. App. 1993)

Cortes v. Cortes No. 624 WDA 2014, Pa. Super. 2015
Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997) (en banc)
Gates v. Gates, 933 A.2d 102, 108 (Pa.Super. 2007)
Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358 (1983)
Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025 (1983)
Hayward v. Hayward, 630 A.2d 1275 (Pa.Super. 1993)
Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998)
Hess v. Hess, 475 A.2d 796 (Pa. Super. 1984)
Holland v. Holland, 588 A.2d 58 (Pa. Super. 1991)
Hutnik v. Hutnik, 535 A.2d 151, Pa. Super 1987
Litmans v. Litmans, 673 A.2d 382 (Pa.Super. 1996)
Mercatell v. Mercatell, 854 A.2d 609, Pa. Super 2004
Mitchell v. Mitchell, 888 S.W.2d 393 (Mo. Ct. App. 1994)
Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983)
Ressler v. Ressler, 644 A.2d 753 (Pa.Super. 1994)
Richlin v. Sigma Design West, Ltd., 88 F.R.D. 634, 637 (E.D. Cal. 1980)
Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983)
Sanborn v. Sanborn, 503 N.W.2d 499 (Minn. Ct. App. 1993)
Shafmaster v. Shafmaster, 138 N.H. 460, 642 A.2d 1361, 1365 (1994)
Verholek v. Verholek, 741 A.2d 792 (Pa.Super. 1999)
 STATEMENT OF JURISDICTION

The Superior Court has jurisdiction over this appeal pursuant to 42 Pa. C.S.

§ 742 granting it exclusive appellate jurisdiction of all appeals from final

orders of the Court of Common Pleas, and also pursuant to Pa. R.A.P. 301

and Pa. R.A.P 341.

 ORDER OR OTHER DETERMINATION IN QUESTION

Appeal from the Order of Judge Daniele entered on June 18, 2015 granting

Decree in Divorce and ordering Equitable Distribution.

 STATEMENT OF SCOPE AND STANDARD OF REVIEW

The scope of review in this case is consistent with other Superior Court

decisions which deal with the Divorce Code. The standard of review is the

abuse of discretion standard. See: Ruth v. Ruth, 316 Pa. Super. 282, 462

A.2d 1351 (1983); Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358

(1983). Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025

(1983); Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983).
 STATEMENT OF QUESTIONS INVOLVED

Whether the court can make and render a fair and equitable property

distribution determination absent complete discovery as required under the

provisions of 23 Pa.C.S. § 3501 et seq.; Pa.R.C.P.1920.33; Fed.R.Civ.P.

26 (b)(1); Richlin v. Sigma Design West, Ltd., 88 F.R.D. 634, 637 (E.D. Cal.

1980).

Whether the court is allowed to assign a zero value to an existing, on-

going and profitable business. Verholek v. Verholek, 741 A.2d 792

(Pa.Super. 1999); Litmans v. Litmans, 673 A.2d 382 (Pa.Super. 1996);

Aletto v. Aletto, 537 A.2d 1383 (Pa.Super. 1988); and Rev. Rul. 59-60.

Sanborn v. Sanborn, 503 N.W.2d 499 (Minn. Ct. App. 1993).

Whether the court can determine a reasonable and unbiased alimony

award absent full and fair financial disclosure. Cortes v. Cortes No. 624

WDA 2014, Pa. Super. 2015 (failure to report income).

Whether the court, aware of financial inconsistencies and financial

falsehoods, can use fabricated data in rendering sound decrees. 18

Pa.C.S. § 4904—Unsworn Falsification to Authorities.

 Whether the court is allowed to overlook an admitted claim of forgery

that was used to deceive the Plaintiff as to the true financial condition of the

parties. 18 Pa.C.S. § 4101—Forgery. Ashworth v. Commissioner, TC

Memo 1990-423 (tacit consent).

Whether the court is allowed to ignore evidence of duress and its

impact on adequate representation and equal treatment under the law.

Mitchell v. Mitchell , 888 S.W.2d 393 (Mo. Ct. App. 1994).; Brown v. Brown,

863 S.W.2d 432 (Tenn. Ct. App. 1993); Shafmaster v. Shafmaster , 138

N.H. 460, 642 A.2d 1361, 1365 (1994); 23 Pa. C.S. 3332.
 STATEMENT OF THE CASE

A. FORM OF ACTION

This is an appeal from the Divorce Decree and Order with incorporated

Equitable Distribution Order entered June 18, 2015 in the Court of

Common Pleas of Montgomery County Civil Division at No. 12-11558. In

her self-counseled (Pro Se) representation, Appellant, Tamara Sweeney

(“Wife”), appeals from the order entered in The Montgomery County Court

of Common Pleas in this divorce decree and equitable distribution case.

Wife contends the trial court abused its discretion in refusing to permit

complete and accurate discovery, refused to impose sanctions (Hein v.

Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998), never considered imposing

sanctions against Husband for repeated discovery violations, by assigning

zero-value to a successful business, overlooked financial inconsistencies

and falsified reporting to the Court, disregarded an admitted claim of

forgery by Husband and its impact on deceiving Wife of the parties’ true

financial condition, ignored evidence of duress and coercion by Husband,

and failed to heed the impact of four lawyer withdrawals on Wife’s ability to
achieve fair and equitable treatment under the law. She claims the court

should have (1) continued the equitable distribution hearing and (2)

imposed a negative inference regarding Husband’s financial status.

B. PROCEDURAL HISTORY OF THE CASE

The divorce was brought under §3301(c) of the Divorce Code-Mutual

Consent. Wife filed a Divorce Complaint on May 07, 2012, raising claims

for equitable distribution, alimony, alimony pendente lite, counsel fees,

costs and expenses. The Divorce Complaint, Interrogatories, and Request

for Production of Documents were served on Husband May 8, 2012. On

May 24, 2012, Husband filed an Emergency Family Petition for Special

Relief regarding the future care, custody and visitation rights of the couple’s

four children. This began a long-running series of custodial claims and

counterclaims. Wife filed a 2nd Motion to Compel Full and Complete

Verified Answers to Plaintiff’s First Set of Interrogatories and Plaintiff’s First

Request for Production of Documents on June 22, 2012. Presiding Judge

Daniele issued an Order for Hearing that addressed Discovery on February

20, 2013. Husband filed a Petition to enforce Marital Settlement Agreement

with Service On April 12, 2013. Wife insists she was not aware of such an

agreement and filed a Brief contesting Husband’s claim on June 3, 2013.

3rd and 4th Motions to Compel Discovery were filed on June 28, 2013 and

November 26, 2014. Hearings were held before Divorce Master

Bruce Goldenberg on July 18, 2012, September 16, 2013, April 9, 2014,

and July 24, 2014. The Master’s Report was filed August 29, 2014. Absent

adequate Discovery, Wife initiates Notice of Intent to serve Subpoena’s to

Produce Documents and Things for Discovery on November 26, 2014. Wife

filed timely Exceptions on September 16, 2014. Husband filed no

Exceptions and requested that Wife’s be dismissed. On October 18, 2012,

Wife’s Counsel filed a Petition to Withdraw. Petitions to Withdraw as

Counsel also occurred on March 6, 2013, October 3, 2014, and July 24,

2015. Withdrawal of Counsel at inopportune times impeded Wife’s ability to

adequately represent herself and produce timely discovery. Unnoted in the

Court Record was a PFA (Protection from Abuse Order) issued by the

Court of Common Pleas of Montgomery County that became effective on

May 1, 2014. Between the time of the Temporary Protection from Abuse

Order and the Final Order, Plaintiff was attacked by the Defendant on April

20, 2014. Wife suffered a broken foot. An Injury Case was accepted and

docketed by the Trial Division—Civil, in Philadelphia County Court on June

9, 2015. A Case Management Order Expedited Track dated June 09, 2015
is directing the proceedings. On June 18, the Honorable Rhonda Lee

Daniele entered a Divorce Decree and Order with Incorporated Equitable

Distribution Order. Wife filed a timely Notice of Appeal (Amended and

Supplemental Concise Statement of Errors Complained of on Appeal) on

July 13, 2015. On July 27, 2014, the Superior Court issued a Docketing

Statement. On September 10, 2015, Judge Daniele responded with her

Opinion. Plaintiff was scheduled to file her Brief on October 26, 2015.

Given the challenge of representing herself Pro Se and needing more time

to file an effective and Court compliant (210 Pa. Code Rule 2111) Brief, she

filed a Motion for Extension of Time (30 Days) to File Brief for Appellant

(First Request) on October 22, 2015. On October 23, Superior accepted

“Application for Extension of Time to File Brief—First Request” and granted

Application for Extension on October 28, 2015. Note: There is a reference

to a Master’s Order on May 10, 2013 for which there is no docket recording

(filing date).

C. PRESIDING JUDGE—RHONDA LEE DANIELE—MONTGOMERY

COUNTY FAMILY COURT

Judge Daniele presided throughout the case. Her determinations are

twofold: 1) Divorce Decree and Order with Incorporated Equitable

Distribution Order dated June 18, 2015 and 2) Opinion responding to the
Concise Statement of Errors Complained of on Appeal dated September

10, 2015.

D. STATEMENT OF THE FACTS

The parties were married on July 10, 1993, separated on October 4, 2012

(Court record incorrectly cites April 22, 2012), and Wife filed a Divorce

Complaint on May 7, 2012. Four children were born of this marriage. Dillon,

age 20 and Daulton, age 19, attend college. Anja, age 16 resides with

Husband. Dustin, age 15 resides equally with Husband and Wife.

(EDO—Findings of Fact General Background June 18, 2015).

As can be seen from the procedural history, what appears to be a simple

case in concept (agreement to divorce) became a 37-month ordeal due to a

‘custodial agenda’ by the Husband, non-compliant behavior in meeting

discovery production deadlines, obfuscation of the real value of marital

assets, unexplained withdrawal of Wife’s legal representation at critical

hearing junctures, and failure to recognize duress and coercion including,

but not limited to, the existence of an in-place PFA and pending Injury Case

before Philadelphia County Court.

Wife filed for divorce on May 7, 2012 after legally separating a month

before. Coincidentally, on the same date, Husband began a pre-meditated

initiative to brand wife as an unfit parent. A Notice of Counseling, Notice to

Attend Mediation, and Notice to Attend Our Children First Seminar were

issued the same day. Subsequent filings, Petition for Psychiatric Evaluation

and Emergency Family Petition for Special Relief (May 24, 2012), Petition

for Hair Follicle Drug and Alcohol Testing (June 5, 2012), Husband’s

Answer to Counterclaim (June 20, 2012), and Wife’s Emergency Family

Re-Petition (February 13, 2013), and other initiatives contributed to the

case’s hostile landscape. Final Custody terms were enumerated in the

Divorce Decree and Order dated June 18, 2015. Findings of Fact Specific

to Equitable Distribution (11) gave sole custody of the three older children

to an alcoholic husband (Findings of Fact (14) Specific to Alimony Factors)

is evidence of a skewed judicial environment, especially since Mother was

not declared to be an unfit parent. This contributed to duress of Wife after

having been sole caregiver for the four children for nearly 17 years (Judge

Daniele Opinion September 10, 2015, Discussion Item 2). In her Opinion

she recognized that Parental Alienation Syndrome affected the three

children (Discussion Item 15). Wife’s contention is Husband used this

hostile, disruptive, and distracting environment to thwart and deflect parallel

and repeated efforts of discovery.

The Wife’s overarching claim is that the Court erred first and foremost in

declaring that marital liabilities exceeded marital assets. This compels

discussion of inadequate discovery, failure to value Husband’s principal

business, his fabrication of produced records including those claimed to

have been filed, as well as false and misleading verbal statements.

In the Divorce Decree and Order (September 10, 2015), “Therefore, the

Court finds that Construction Marketplace (“CM”), LLC and

Roofingprojects.com (“RP”), LLC, although marital assets, have no value

subject to equitable distribution” (Page 4). “Husband will retain his

business which produces substantial income to him although it has no

value for Equitable Distribution purposes” (Page 7). Master Bruce

Goldenberg correspondingly reached the same conclusion in his Master’s

Report and Recommendation dated August 29, 2014. While it was

ultimately overlooked, Wife claims the Court gave no weight to her role in

incubating CM/RP by providing start-up funds through stock liquidation and

other cash sources (ED/Exceptions Transcript Box 144, Lines 8-9).

Mercatell v. Mercatell, 854 A.2d 609, Pa. Super 2004; Hutnik v. Hutnik, 535

A.2d 151, Pa. Super 1987. Husband’s testimony, produced evidence, and

pro-forma income calculations belie this “worthless” determination.

In a statement to Tom Quinn (friend), Husband declared that CM/RP was

generating $1.5mm in revenue in 2011 (ED/Exceptions Transcript Box 85,

Lines 20-23, January 21, 2015). New IRS and State of Pennsylvania Tax

Liens of $743,791 (ED/Exceptions Transcript Box 62, Lines 6-7) and

$34,031 respectively were entered in 2013. Assuming this tax liability arose

from 2012 income and applying the highest marginal 2012 Federal Tax

Rate of 35%, this equates to an AGI (Adjusted Gross Income) of

$1,144,294. Yet Husband reports 2012 AGI of $268,849 while also retiring

$478,551of prior IRS liens in the same year. Husband testifies his

2014 Draw/Officer Compensation was $234,091 (ED/Exceptions Box 106,

Lines 14-25). In answer to attorney questioning about 2015 average

monthly income (Box 292, Lines 22-23), Husband responds, “So a good

month could be $100,000, it could be $150,000 (ED/Exceptions Box 293,

Lines 18-19). In summary, Wife contends that Court erred egregiously by

declaring that a business, generating revenue near to-or-above $1,000,000

per year, had no value. Such a determination defies all mathematical logic.

The Court also declared the business had no value without its principal.
This contravenes normal logic. A business derives value from the

contributions of an owner-principal and its employees. But if the owner

wants to reap the benefits of having built a successful business, he will

either continue to operate it or sell it, not dissolve it. The Court claims it

gave Wife ample time to conduct a Forensic Accounting of CM/RP and she

that she did not hire a forensic accountant (Opinion, Discussion, Item 11).

Contrary to this contention, Wife did enlist services and opinions from four

(4) different, qualified practitioners but, aligning with Wife’s contention of

inadequate information, declared that it was impossible to fairly value the

business based on normal valuation metrics, including but not limited to

Seller’s Discretionary Earnings (routinely used in Small Business

valuation). Wife was also disadvantaged by the absence of marital funds

and post-separation assets from which to conduct a thorough investigation.

Lack of husband’s submission of current income data enhances the

assertion of obfuscation and attempt to deny Plaintiff just distribution and

support (repeated discovery requests noted in Procedural History and

ED/Exceptions Report, Husband’s Exhibits, Page 1). Further examination

of the January 21, 2015 Equitable Distribution/Exceptions Transcript

supports the claim that discovery was not only incomplete but also

fabricated. Wife produced a purported copy of Husband’s 2013 IRS

Individual Tax Return (Exhibit W-28). Husband’s evidence included an IRS

Account Transcript dated 01.07.14 (Exhibit H-10). At the bottom of the

official IRS Account Transcript for Tax Year 2013 was language, “Return

Not Present for This Account”. At an October 1, 2015 Modification

Conference Hearing in Montgomery County Court, Husband continued this

line of deception by telling Support Master, Patricia Coacher Esquire, he

had formally filed IRS Returns for Tax Years 2013 and 2014. When

presented with Transcript evidence that neither return had been filed,

husband backtracked (Unreleased Court Summary of November 1

Hearing). Wife contends that not only did the Court fail to recognize

inconsistencies in the Husband’s evidence record but it failed to warn him

about committing punishable misdemeanors. Additionally, Husband’s

failure to produce a current income history as required under Pa. Rules of

Civil Procedure governing discovery is an additional violation of standard

court procedures.

As noted above, Husband was delinquent in not producing timely discovery

on four (4) separate occasions. Yet presiding Judge Daniele contends “The

parties had ample time to complete discovery” (Opinion, Discussion, Item

7, September 10, 2015). Wife contends Husband was favored repeatedly

and that Judge Daniele’s denial of further discovery made shortly after

securing new counsel, her 4th attorney, was capricious and in violation of

Pa. C.S. §3505 (b). Wife believes the Judge’s truncation of discovery puts

adequate discovery in the context of time and not quality and completeness

of furnished documents.

Wife disputes Court’s contention (Opinion, Discussion, Item 10) that

Defendant-Appellee’s signing of Plaintiff-Appellant’s name on IRS

documents (Defendant-Appellee testified as such) did not constitute

forgery. Court claims it did not constitute forgery because it lacked a

specific intent to defraud or injure. Wife argues that his non-filing of taxes

from 2003-2011(Attachment—Berkshire Capital Letter Dated March 22,

2013), his forged filings of IRS Form 2848 (Power of Attorney and

Declaration of Representative) on May 24, 2011, IRS Form 8821 (Tax

Information Authorization) on January 5, 2011, and IRS Form 1040A (U.S.

Individual Income Tax Return) on January 5, 2012 constitutes an effort to

deceive and deprive Wife of rights, money, and property by deception. By

definition, then, it resulted in Husband’s financial gain. Wife’s position is

diametrically opposed to the Court’s, is probative and doesn’t violate the

intention of Rule 404 (Character Evidence), and in no way conforms to the

definition of ‘tacit consent’. Wife’s directive to Husband to “straighten out

the IRS issues” inferring responsibility to negotiate a tax settlement does

not constitute authority to commit acts of forgery, perjury, or deception.

In addressing the last Question Involved (duress), Wife heartily disagrees

with Presiding Judge’s statement (Opinion, Discussion, Item 15) that

“There is no evidence of record that Defendant-Appellee threatened

Plaintiff-Appellant with bodily harm or psychological pressure”. Wife was

exposed to an extensive campaign of hostility, threat, intimidation, and

physical/mental/emotional abuse. (795-Page Binder with evidentiary proof

(photos, texts, emails, letters) of degradation, humiliation, fear-inducing

behavior, and use of parental alienation tactics (Judge Daniele recognized

the argument, tacitly affirmed its merit, but said it was not germane to the

discussion of Equitable Distribution (Opinion, Discussion, Item 15); Binder

is part of the official court record and was reviewed in the Record Room at

Superior’s Prothonotary’s Office at 530 Walnut Street, Philadelphia, PA on

September 30, 2015). It was handed to Presiding Judge Daniele who did

not review the material and said to the Plaintiff in a dismissive manner,

“You don’t expect me to read this, do you?”

The situation between the Parties was so serious it merited filing by Wife of

several Protection from Abuse Orders (PFA's) in 2013 and 2014. On April

8, 2014, an initial PFA was filed. On May 1, 2014, a Final Protection from

Abuse Order became effective. It ordered the defendant, Thomas James

Sweeney, to not abuse, harass, stalk or threaten Tamara Jean Sweeney in

any place where she might be found and not to not contact the Plaintiff by

telephone or by any other means, including through third persons.

However, between the time of the Temporary Protection from Abuse Order

and the Final Order, Plaintiff was assaulted by the Defendant on April 20,

2014. She was pushed, knocked to the ground, required Emergency Room

care, and was diagnosed with a serious foot injury. An Injury Case was

accepted and docketed by the Trial Division—Civil, in Philadelphia County

Court on June 9, 2015. Interrogatories and Requests for Documents are

currently in process. An expedited Case Management Order (No. 01204) is

in place and labeled Sweeney v. Sweeney ETAL.

Duress, here defined as pressure not coercion, also played a factor in the

Plaintiff’s ability to secure adequate legal representation. While not claiming

ineffective counsel, Plaintiff notes that three attorneys elected to withdraw

from her case as very inopportune times, right before critical hearings. This
necessitated a scramble to secure counsel and, not surprisingly, delayed

her ability to force and compel adequate discovery as well as securing a

forensic accounting of Husband’s business.

In the outer chamber of a Montgomery County Court hearing room in early

January 2013, Defendant, confronted the Wife, told her their financial

situation was dire, an IRS tax liability projected at a minimum of $695,225

existed (Attachment—summarized in a Berkshire Capital letter dated March

22, 2013; copy of letter also resides in 795-page binder), that bankruptcy

was probable, Wife should exit the relationship expediently, accept a

$38,000 cash payment in lieu of nothing, and free herself of future

encumbrances. Shortly thereafter, on January 11, 2013, Petitioner sent

Respondent a Marital Settlement Agreement with embedded $38,000 offer

to Wife. After a back-and-forth negotiations between Attorneys Andrew

Laird (Plaintiff) and Sheryl Rentz (Defendant), Wife refused to sign the

proposed MSA because there was no consideration given to Husband’s

business valuation. (Docket Item 74--details contained within Petition to

Enforce Marital Settlement Agreement dated April 12, 2013).

Coincidentally, in the same Berkshire Capital letter, Steve Pierce, Senior

Associate, opined “Plaintiff was foolish to fail to go through with the

agreement”. These exchanges occurred outside of normal legal protocols,

were malicious and illegal, and never recognized by the Court despite

testimony by the Plaintiff. Plaintiff notes 23 Pa. C.S. 3332 allows for a re-

opening of a case where there is evidence of intrinsic fraud or new

evidence relating to the cause of action which will sustain the attack upon

its validity. This provision not only applies to inadequate and deceitful

discovery but also the Defendant’s attempt to coerce and cajole the Plaintiff

outside of normal attorney negotiations or proper Court supervised

hearings.
 ARGUMENT

The Appellant’s argument in this matter is fundamentally that the lower

court completely abused its discretion in fashioning the equitable

distribution award in this case, that wholly neglected to consider all of the

evidence of record in this case, which was on its docket for over 3 years,

and involved numerous hearings, and where issues were brought to the

attention of the Court throughout that were given no consideration on the

final order. The lower court effectively neglected to consider the entirety of

the record in this matter, including approximately 800 pages of evidence

that were filed by the Appellant, which included abundant evidence of the

Appellee’s abuse of the divorce proceedings and withholding of evidence

pertinent to the valuation of the marital estate, all of which created a record

at the January 21, 2015 Equitable Distribution/Exceptions Hearing that was

incomplete, and could not form the basis of an award that could, under any

circumstances, fairly be called “equitable.”

The Appellant in this matter had four attorneys, all of whom withdrew for

reasons having nothing to do with the merits of the case, or with the

conduct of the Appellee, who was diligent and cooperative with her lawyers
throughout, and properly focused on mitigating the impact of the

misbehavior of the Appellee/husband on the lives of their children, and in

reaching a distribution that was, indeed, equitable. In fact, the Appellant

placed the court on notice in November, 2014 of the difficulties she was

having in gathering information to conduct a proper business valuation, and

that yet another attorney was withdrawing from the case as the hearing on

equitable distribution was nearing, and the court ruled that the hearing

would proceed on January 21, 2015 with no real consideration being given

to the difficulties that the Appellant was experiencing through no fault of her

own, and due, in significant part, to the abusive and obstructionist conduct

of the husband.

A. EQUITABLE DISTRIBUTION/BUSINESS VALUATION

Pursuant to 23 Pa.C.S.A. § 3502(a), when fashioning equitable distribution

awards, the trial court must consider: the length of the marriage; any prior

marriages; age, health, skills, and employability of the parties; sources of

income and needs of the parties; contributions of one party to the increased

earning power of the other party; opportunity of each party for future

acquisitions of assets or income; contribution or dissipation of each party to

the acquisition, depreciation or appreciation or marital property, value of

each party's separate property, standard of living established during the

marriage; economic circumstances of each party and whether the party will

be serving as custodian of any dependent children. 23 Pa.C.S.A. §

3502(a)(1-11). The weight to be given to these statutory factors depends

on the facts of each case and is within the court's discretion. Gaydos v.

Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997) (en banc).

1. Discovery Incomplete

At the outset, despite the lower court’s gratuitous statements to the

contrary, discovery was incomplete and misused in shaping the Equitable

Distribution Order. Husband failed to produce discovery in a timely

manner, including a list of businesses both held outright and in other

registration manners (Hands-On Media, Infra Tech engineering LLC, and

GlobalSpec), their 1120-S IRS Income Tax Returns (for S-Corporations),

his personal income tax returns (filed as single payer), list of payments to

family members, consultants, and others who were not employees of his

companies, and other manner of requests. For example, in 2013, the IRS

entered a tax lien of $743,791, which equates to an AGI of $1,231,442. A

non-audited, non-filed Tax Return draft presented to the Plaintiff by the

Defendant shows an AGI of $258,471. Clearly, the document was prepared

to mislead the Plaintiff, deny her adequate support, and affirms the

defendant’s dishonest intentions. True and proper stating of income and

determination of marital assets was impaired. These were deliberate

failings of Husband, as the neglecting, misleading, and confusing testimony

of Husband as outlined above, makes clear.

It was an abuse of discretion for the lower court judge to conclude that the

parties had ample time to complete discovery, under the circumstances, as

that conclusion depends on the cooperation of both parties in meeting their

discovery obligations, and the husband had a long record of demonstrated

non-cooperation. That finding is too narrowly focused. It puts adequate

discovery in the context of time and not quality of furnished documents.

Discovery efforts by Plaintiff were impaired because wife’s attorney

inexplicably resigned from the case that left her improperly represented.

After granting a delay, the Court denied Plaintiff’s request for an additional

extension. Thereby tacitly favoring the Defendant in the matter of Equitable

Distribution. This violates the intent of 23 Pa.C.S. § 3505(b) that requires

the parties to file inventories listing the marital property and liabilities, non-

marital property, and property transferred within three (3) years prior to the

commencement of the action.

This also violates the provisions of Pa. Code Rules contained in Chapter

4000 (Depositions and Discovery). Husband routinely violated the

guidelines covered individually under the heading, “Production of

Documents and Things and Entry for Inspection”. Sanctions that could

have been applied by the court (Hein v. Hein, 717 A.2d 1053, 1056 (Pa.

Super. Ct. 1998), were addressed but overlooked by Judge Daniele who

seemed unresponsive to Plaintiff’s petition about inadequacy of document

production.

In Hein, the Court said:

We take note that the integrity of the adjudication process

requires that all parties promptly and with thoroughness
respond to discovery requests. While this principle is applicable
to all litigation, it is especially meaningful in domestic relations
matters. Domestic relations litigation frequently involves
bitterness and hostility coupled with an unwillingness of the
parties to cooperate. The parties who at one time had an
intimate relationship with one another are now engaged in a
fight and the litigation process is used as an arena to resolve
personal problems. However, a court cannot proceed to a fair
resolution of the matter without the necessary information. The
Divorce Code requires that the courts do "economic justice." 23
Pa.C.S.A. § 3102(a)(6).

The lower court failed to recognize that these principles are of

paramount significance, and her simply casting them aside, then

refusing to assign any value to the business that produced at least $1

million a year, or more, was a clear abnegation of her duties, and an

abuse of discretion.

2. Business Valuation

Most significantly, as it relates to the terms of the distribution of the estate,

the lower court wholly failed to engage in a full and proper valuation of the

business ventures of the husband, from which he drew significant income

over the years of the marriage. The court in this case effectively “punted”

on the issue of the business valuation, and made a determination that,

because the husband engaged in financial mis-dealings which resulted in

over $800,000 in unpaid taxes and penalties, that the wife was

complicit in this scheme, and should be penalized because it allowed her to

live a life of luxury off of tax monies “borrowed” from the IRS. This

conclusion of the lower court is not supported by the evidence of record,

does not reflect the true nature of the circumstances under which the

Appellant lived during the marriage, and effectively rewards the husband

for his own misconduct, and plays right into his agenda to use the divorce

proceedings to continue his abuse of the Appellant.

The Divorce Code does not contain a specific method for valuing marital

assets (except, perhaps, defined benefit retirement annuities; see 23

Pa.C.S. § 3501(c)). The trial court may consider estimates, inventories,

records of purchase price, and appraisals submitted by the Verholek v.

Verholek, 741 A.2d 792 (Pa.Super. 1999); Litmans v. Litmans, 673 A.2d

382 (Pa.Super. 1996). Johnson v. Johnson, 529 A.2d 1123 (Pa.Super.

1987) (increase in value of business).

In Littmans, the Court said:

In determining the value of marital property, the court is

free to accept all, part, or none of the testimony as to the true
and correct value of property. Aletto v. Aletto, 537 A.2d 1383
(Pa. Super. 1383). "[W]here the evidence offered by one party
is un-contradicted, the court may adopt this value although the
resulting valuation would have been different if more accurate
and complete evidence had been presented." Holland v.
Holland, 588 A.2d 58 (Pa. Super. 1991).

Implicit in the holding of these cases is that a business valuation must

be conducted when it impacts on the matter of equitable distribution,

and Judge Daniele simply calling it a wash under the circumstances,

and criticizing Wife for living a lavish lifestyle and benefitting from the

misconduct of the Husband is not supported by the record, and is an

abuse of discretion.

Pennsylvania Rule of Civil Procedures 1920.52(a) requires that in an

action for Divorce, the resultant Decree "shall state the reasons

therefore." In fashioning an equitable distribution award, the trial court

must, at a minimum, show that it has fairly considered the eleven factors

set forth in 23 Pa.C.S.A §3502. Gates v. Gates, 933 A.2d 102, 108

(Pa.Super. 2007). Each factor must be evaluated individually to

determine whether or not it favors one party and, the Court must

consider how many factors favor each party. (See Balicki v. Balicki, 4

A.3d 654 (Pa. Super. 2010). Where the analysis employed by the trial

court in its opinion discusses in a cursory fashion only a few of the

[required] factors, the distribution plan must be set aside. Aletto v.

Aletto, 537 A.2d 1383 (Pa. Super. 1988). Here, the lower court failed to

follow required procedures and set forth the factual basis upon which the

ruling was made in that there are no findings of fact and no conclusions

of law in support of either the Divorce Decree or the Support Order. The

lower court essentially ignored its duty to weigh the evidence and make

necessary credibility determinations, or, more specifically, made

credibility determinations in favor of husband when the evidence shows

clearly that he was deceptive and not at all credible, including

demonstrated forgery, and made biased and prejudicial determinations

against Wife that unquestionably were not “equitable” in any sense of the

word.
Not only did Judge Daniele err by not insisting on valuation of a lucrative

business (marital asset not contested by the husband) but she over looked

Plaintiff’s contribution to starting the business. Wife’s money in the amount

of $19,000, a combination of the proceeds from equity sales ($14,000 in

Roadway and FedEx stock) and $5,000 of other liquid assets, was used to

fund Roofing Projects aka roofingprojects.com. In dividing marital property,

the trial court must consider each of the spouse’s contributions to the

acquisition, preservation, appreciation and depreciation of the marital

estate. Mercatell v. Mercatell, 854 A.2d 609 (Pa.Super. 2004). However, a

spouse’s status as breadwinner did not entitle him to more favorable

treatment in equitable distribution. Hutnik v. Hutnik, 535 A.2d 151

(Pa.Super. 1987).

One should not be required to read the trial court's voluminous

transcripts of testimony to find the court's "reasoning" but rather such

analysis should be contained in proper findings of fact and conclusions of

law, and, significantly, the record should reflect the true nature of the

proceedings, which, in this case, it does not. To the contrary, a review of

Judge Daniele’s Opinion, in the context of the facts set forth above, and in

comparison to the post-hearing brief submitted by Husband’s lawyer,

shows that she was biased and prejudiced against Wife, and simply

adopted the arguments of Husband’s lawyer, with no review and

consideration of the evidence herself.

As pointed out, the entirety of these proceedings cannot adequately be

reflected on the one-day hearing on equitable distribution held on January

21, 2015. Prior to that hearing, the lower court was on notice of years of

uncooperative efforts on the part of Appellee/husband, and the obstruction

of Appellant’s access to, and concealment of, evidence pertinent to the

issue of the valuation of the husband’s business that was, without

question, a significant asset of the marital estate, to which Appellant

contributed significantly financially in the early years of the marriage, and

which was permitted to thrive due to her efforts in maintaining the family

home, and raising the children. The manner in which her efforts were

discounted by the court was demeaning and insulting, and did not reflect

the true nature of the factors that are to be considered on equitable

distribution.

The final Master’s Report and Recommendation upon Equitable

Distribution, Alimony, Counsel Fees and Costs, dated July 24, 2014 and
signed by Master Bruce Goldenberg, was deficient. Judge Daniele’s

statements to the contrary, this was relied upon significantly in the Divorce

Decree and Equitable Distribution Order. The background section

acknowledged husband’s annual earning capacity of $193,644 from an S-

Corp (flow-through entity) but assigned no value to the business. The

Marital Estate section reinforced this illogic by saying there were no marital

assets other than a home. Also in the Marital Estate discussion, the value

of the home was misstated. Regarding an outstanding IRS liability, the

Master went on to state that husband would assume liability and hold wife

harmless. This was an error by the Master in that only the IRS can grant an

innocent spouse exemption. Report identified wife’s monthly income as

$3,214 and husband’s as $16,137. Despite income disparity, Master denied

Plaintiff’s claims for attorney’s fees and costs. Plaintiff claims this is unfair

given difference in ability to pay.

The lower court accepted and incorporated deficient provisions of the

Master’s Report, most glaringly by adhering to the determination that a six-

figure income-producing business asset had no value. This oversight

challenges and contravenes the Court’s logic in contending that marital

debt exceeded marital assets. Court also refused to accept Plaintiff’s timely
home real estate appraisal that assigned a higher value to the home than

Defendant claimed.

Plaintiff contends that failure to value a business is the same as failure to

report income. Failure to report income results in retroactive child support

award (12+ years). Cortes v. Cortes, (non-precedential), No. 624 WDA

2014 (Pa. Super., September 3, 2015). Equitable distribution of marital

property, 23 Pa.C.S. § 3501 et seq. requires marital property to be valued

before it can be fairly distributed.

B. ALIMONY ISSUES

Related to the above, but alternatively, is the issue of alimony. The

lower court, again revealing both her abuse of discretion in fashioning

the equitable distribution award, and somehow, despite the clear

evidence of obfuscation and deception, crediting the Husband’s

testimony as credible, and showing her bias against the Wife, reduced

the APL award, and entered a limited term of alimony, at $2500/month,

for a limited time, until their last son’s 18th birthday.

Where the court denies alimony, or, in this case, makes an award that

substantially reduces the APL, it must issue an Order setting forth the
reason justifying its actions. 23 Pa.C.S.A. §3701(d). The trial court is

required to enter a Decree "separately adjudicating each claim raised".

See, Pa. R.C.P, Rule 1920.51(d). The trial court must dispose of all the

pending issues before the court. 23 Pa. C.S.A. § 3323. It is likewise

reversible error for a trial court sitting in place of the Master to fail to

issue findings of fact in disposition of a claim for alimony. Hess v. Hess,

475 A.2d 796 (Pa. Super. 1984) ( "the reason for the denial" of alimony

as required by 23 Pa.C.S.A. §3701(d).

Clearly, the lower court made the preliminary determination that alimony at

some level was proper, and it is, but she abused her discretion, and

exhibited her clear bias and prejudice against the Wife in fashioning the

Order. In fact, this is revealed by the lower court’s own strained analysis,

to wit, the Divorce Code provisions and case law governing alimony

mandate that the award of alimony be made to allow the former spouse to

live the lifestyle that was achieved during the marriage. The lower court

purportedly used this factor against the Wife when it saddled Wife with the

Husband’s misdealing with the IRS and his business ventures, but then

reduced the APL award in her alimony award against her. The court also

reached back to the 2004 time-frame to arbitrarily make a determination of

Wife’s earning capacity, and did not recognize that she had been out of the

work force for many years, made all her major contributions to the family,

and even contributed to Husband’s business ventures. The Court’s

findings in this regard clearly did not reflect the true nature of the evidence,

were an abuse of discretion, and clearly revealed a bias and prejudice

against the Wife. Effectively, even if Husband’s business could not be

valued, there is significant evidence that he earns at or over

$100,000/month, and a reduction of the APL to $2500, and continuing it for

a limited period of time does not do economic justice between these

parties.

While the lower court in this case unduly criticized and punished the Wife

for what the court erroneously labeled an extravagant lifestyle, the

equitable distribution and alimony laws dictate a different result. In Hess,

for example, the court upheld the equitable distribution award to wife

wherein she received the majority of the marital estate valued at less than

$200,000.00 and alimony in the amount of $4,000 per month for eleven

years following a ten year marriage. The court determined that the

alimony award was appropriate where the couple had "lived a privileged

lifestyle while married;" where wife was presently unable to work and her
yearly income derived from disability payments was less than $15,000 per

year; and where husband could pay such an amount while maintaining his

lifestyle given that his yearly income ranged between $171,445 and

$216, 967. The appellate court approved the trial court's reasoning due

to the fact that the alimony award would allow the wife to provide a

comparable lifestyle for the parties' minor child and that husband retained

significant non-marital property by virtue of an antenuptual agreement

and where his income greatly exceeded that of wife's.

Likewise, in Balicki v. Balicki, 4 A.3d 654 (Pa. Super. 2010), Wife was

awarded 60% of the marital estate which exceeded $850,000 and, over

ten years of alimony (until age 62) in the amount of $5,540 per month.

Critical to the Court's decision is the fact that the parties were married 25

years, with wife's highest educational level being high school; wife

devoted herself during the marriage to caring for the parties' two

children and serving as a homemaker; and where Husband had

substantial earnings of $21,000 net per month as an Attorney and firm

shareholder as well as a part owner of an insurance agency. (See also

Baker v. Baker, 861 A.2d 298 (Pa. Super. 2004), where Wife was

awarded 65% of the marital estate and $400 per month in alimony for
three years after an eleven Year marriage where wife, although

unemployed at the time of the hearing, had provided support to husband

while he attended veterinary school; Schneeman v. Schneeman, 615

A.2d 1369 (Pa. Super. 1002) (wife awarded alimony until time of

retirement of husband); Teriberry v. Teriberry, 516 A.2d 33 (Pa. Super.

19086) where dependent homemaking spouse was awarded permanent

alimony and 72% of the marital estate.

Clearly under these precedents, the alimony award in this case was not

equitable.

In addition, there are two elements of mistake in both the pre-divorce APL

award by the Court and the final award under the Divorce Order. The

Master committed an APL calculation error in not using Pa. Rule 1910.16-4

to formulaically determine an appropriate Alimony award. Plaintiff notes

there were no special circumstances or unusual needs at the time of APL

determination, therefore, formula use should prevail. Court did not take into

account that Plaintiff’s absence from the workforce and an injury sustained

while under a PFA (Protection from Abuse) Order impaired her ability to re-

employ in a former, equivalent, higher-paying position. Rule 1910.16-4

(Support Guidelines. Calculation of Support Obligation. Formula) states

that “in high income cases, Part IV shall be used as a preliminary analysis

in the calculation of spousal support or alimony pendente lite obligations.

High-income is defined as combined income above $30,000. In 2012,

combined income was above $300,000, and, but-for the Husband’s

deceptive business practices, would likely be provably much greater than

that. Alimony based on 2011 and 2012 IRS Tax Return information, should

have been set at $17,929/month using 2011 data, $5,930/month using

2012 figures. As the original Master’s Report states, a payment of

$3,359/month was ordered. There’s also an evidence of failure to consider.

Defendant failed to file his 2013 and 2014 IRS Tax Returns. This is verified

by IRS Tax Transcripts annotated “did not file”. Transcripts were submitted

as new and heretofore undisclosed evidence during a Support Modification

Conference held at Montgomery County Court (PA) on October 1, 2015.

Wife’s income is 1/10th that of her ex-husband’s, hence the need for the

Court to revisit. In dividing marital property, the trial court must consider the

relative economic circumstances of the parties and consider each spouse’s

ability to recover from the adverse economic consequences of divorce.

Ressler v. Ressler, 644 A.2d 753 (Pa.Super. 1994); Hayward v. Hayward,

630 A.2d 1275 (Pa.Super. 1993).

Under all the facts and circumstances, the Wife has unequivocally shown

that the lower court committed an abuse of discretion, and revealed bias

and prejudice against Wife, and entered an award on equitable distribution

that did not do economic justice between the parties.

C. HUSBAND’S FORGERY/CREDIBILITY ISSUES

Implicit in the lower court’s determination was that Husband was somehow

credible, or more credible than Wife, in his testimony. Nothing could be

farther from the case, and the lower court giving credit to Husband in light

of his demonstrably and obviously duplicitous obfuscating testimony

reveals the abuse of discretion of the lower court judge, and her clear bias

and prejudice against the Wife. Even if the final equitable distribution order

is compared to the post-hearing submission by Husband’s lawyer, it is

apparent that all the lower court did was adopt the arguments of Husband

with no critical analysis of the evidence or the testimony.

Contrary to what Judge Daniele claims (there was no specific intent using

The Crimes Code definition), it is a clear violation of 2010 Pennsylvania

Code Title 18 - CRIMES AND OFFENSES Chapter 41 – Forgery and

Fraudulent Practices 4101 for Husband to have signed Wife’s name to the

tax submissions to the IRS. It does not meet the ‘tacit consent’ exceptions
as elaborated in the Tax Court case of Ashworth v. Commissioner, TC

Memo 1990-423. It was never the intent of the Plaintiff to grant tacit

consent, therefore the Court’s contention is invalid. Defendant admitted to

forging the Appellant’s name on several documents as evidenced by

testimony contained in the attached Equitable Distribution/Exceptions

Transcript dated January 21, 2015.

Regardless of the actual criminality of the signing of Wife’s name to the IRS

submissions, this clearly impacts greatly upon Husband’s credibility, as

does his entire course of deceptive business dealings; it is so blatantly

obvious on the face of his testimony, but the lower court did not even

mention any of it, and appeared to treat the husband as the good father

and man that he clearly is not. It is beyond an abuse of discretion of the

lower court, and reveals her clear bias against the Plaintiff.

One example that demonstrates this is the fact that the lower court at one

point said that she was holding husband exclusively responsible for the tax

problems in her equitable distribution order, and even almost commended

husband for how he dealt with the matter, but then she later 1) reduced the

Wife’s alimony, and failed to recognize her rights in connection with the
equitable distribution by falsely stating that Wife somehow benefitted from

the lifestyle afforded by Husband “borrowing” from the IRS through his

deceptive course of dealings and management of the affairs of his

business, and 2) the lower court specifically, in direct contradiction to her

expression of holding Wife harmless, said Wife will be responsible for 10%

of Husband’s tax liability. This will be deducted from Wife’s portion of the

sale of the marital home when the last minor child reaches the age of

majority, and will significantly further reduce the distribution to Wife, which

will not at all be equitable.

D. DURESS AND COERCION OF WIFE

Wife was exposed to an extensive campaign of hostility, threat,

intimidation, and physical/mental/emotional abuse. The consideration of

these matters, whether or not directly related to the business valuation and

alimony issues, clearly significantly impacted upon the entirety of these

proceedings, including Husband’s deceptive testimony, and reveals, again,

that the lower court abused its discretion as apparent on the face of the

record, conducted no critical analysis of the record, and was biased and

prejudiced against Wife. The lower court makes it appear that the January

21, 2015 hearing was the only proceeding in this matter, when the court

was well-aware of the extensive proceedings that preceded January 21,

2015, which included a hearing related to the beach house, and the

submission of 800 pages of evidence showing how horrific Husband

mistreated her, which the lower court judge simply refused to consider,

then punished the Wife financially, allowing the Husband to use the court

proceedings to abuse the Wife, and harm her financially, and deprive her of

her children well into the future.

The situation was so serious it merited filing several Protection From Abuse

Orders (PFA's) in both 2013 and 2014. On April 8, 2014, an initial PFA was

filed. On May 1, 2014, a Final Protection From Abuse Order became

effective. It ordered the defendant, Thomas James Sweeney, to not abuse,

harass, stalk or threaten Tamara Jean Sweeney in any place where she

might be found and not to not contact the Plaintiff by telephone or by any

other means, including through third persons. However, between the time

of the Temporary Protection From Abuse Order and the Final Order,

Plaintiff was attacked by the Defendant on April 20, 2014. She was pushed,

knocked to the ground, required Emergency Room care, and was

diagnosed with a serious foot injury that requires surgery. Plaintiff also

asserted in Court that the Defendant was mostly successful in alienating

three of her four children. Judge Daniele recognized the soundness of this
argument, silently affirmed it, but said it was not germane to the discussion

of Equitable Distribution. Duress also played a factor in the Plaintiff’s ability

to secure adequate legal representation, and will affect her into the future,

analysis of which is required by the alimony provisions. While not claiming

ineffective counsel, Plaintiff notes that three attorneys elected to withdraw

from her case as very inopportune times, right before critical hearings. This

necessitated a scramble to secure counsel and, not surprising, delayed her

ability to apply adequate discovery pressure for document submission.

During this sustained period of duress, Defendant, using an outside 3rd

Party, tried to cajole, persuade, unfairly influence, and intimidate Plaintiff

into signing a wholly-inadequate PSA (Property Settlement Agreement).

For the conveyance of $38,000, Defendant offered to drop the divorce case

and

further costly proceedings. While mediation and attorney-to-attorney side-

bar agreements are often expeditious, this occurred outside of normal legal

protocols and was malicious and illegal but never recognized by the Court

despite testimony by the Plaintiff. In addition, Plaintiff was subjected to

constant emotional abuse by the Defendant. He engaged in behavior

meant to control, intimidate, subjugate, demean, punish, and isolate her by

using degradation, humiliation, fear, and parental alienation tactics. Plaintiff

submitted a 795-page accounting of this conduct along with evidentiary

proof. It was entered into the record but, in a mistake by the Court, Judge

Daniele did not review the material and said to the Plaintiff in a dismissive

manner, “You don’t expect me to read this, do you?”

In addition to the personal duress cited above, this case also includes a

form of coercion. Mitchell v. Mitchell , 888 S.W.2d 393 (Mo. Ct. App. 1994).;

Brown v. Brown , 863 S.W.2d 432 (Tenn. Ct. App. 1993); Shafmaster v.

Shafmaster , 138 N.H. 460, 642 A.2d 1361, 1365 (1994); 23 Pa. Cons.

Stat. 3332 allows for a re-opening of a case where there is evidence of

intrinsic fraud or new evidence relating to the cause of action which will

sustain the attack upon its validity. This provision not only applies to

inadequate and deceitful discovery production but also the Defendant’s

attempt to buy-off the Plaintiff, and the entire course of these proceedings.

Again, consideration of all of these matters reveals that the lower court’s

June 15, 2015 Equitable Distribution Order was not based upon a proper

analysis of the entire record of these proceedings, and was essentially just

an adoption of the Husband’s post-hearing submission, making it appear

that the January 21, 2015 hearing was the only proceeding in this matter,
and which neglects to take into consideration the entirety of the record of

these proceedings, and clearly reveals extreme abuses of discretion and

bias and prejudice against Wife.

 SUMMARY OF THE ARGUMENT

The lower court abused its discretion and committed procedural violations

in fashioning its equitable distribution award in this case that: 1) failed to

assign any value to the ongoing business of the Husband that generates

him revenue in excess of $100,000 per month, and 2) reduced the Wife’s

APL substantially, and failed to make a separate payment to her to

adequately reflect the financial condition of the parties, due to the

Husband’s fraudulent misconduct, deception, and failure to cooperate in

discovery. The lower court revealed a clear bias and prejudice against

Wife by effectively adopting that post-hearing submission by Husband’s

attorney with no independent analysis of the entirety of the record of these

proceedings.

The business in which Husband was involved has substantial value as a

going concern and generates a significant stream of income, and the

lower court abused its discretion in assigning it no value, then in neglecting

to take the substantial income stream into consideration in fashioning its

equitable distribution and alimony award. The abuse of discretion in these

regards is revealed by the lower court dismissing the Wife’s contention that

she had not received adequate discovery, due, in part, to the Husband’s

obfuscations, but then criticizing her for not having done more discovery.

The lower court was aware of all the circumstances surrounding this

matter, and entered its Order in a biased and prejudiced manner.

The lower court abused its discretion in fashioning the equitable distribution

award in this case by wholly neglected to consider all of the evidence of

record in this case which was on its docket for over 3 years, that involved

numerous hearings, and where issues were brought to the attention of the

Court throughout that were given no consideration on the final order, and

making it appear that the January 21, 2015 record was the only evidence in

the case. The lower court effectively neglected to consider the entirety of

the record in this matter, including well over 800 pages of total evidence

that were filed by the Appellant, which included abundant evidence of the

Appellee’s abuse of the divorce proceedings and withholding of evidence

pertinent to the valuation of the marital estate, all of which created a record

at the January 21, 2015 that was incomplete, and could not form the basis

of an award that could, under any circumstances, fairly be called

“equitable.”
The lower court abused its discretion in the fashioning of the alimony award

by concluding that Wife was complicit in the financial misconduct of

Husband, and that she somehow was the beneficiary of a lavish lifestyle

that she was allowed to love by “borrowing” funds out of which Husband

effectively cheated the IRS. The testimony at the January 21, 2015

hearing, and otherwise in the record, clearly showed that this was not the

case, as Wife was not living a lavish lifestyle, and was not the beneficiary of

the failure of Husband to pay his taxes. There was also a clear pattern of

deception here, as well, and the lower court revealed her clear bias and

prejudice against Wife in making these determinations. While having the

proven, significant monthly income of over $100,000, which was concealed

from Wife, Husband also testified that the parties were having financial

difficulties, and that is what Wife was led to believe. Wife submits that the

inconsistencies in Husband’s testimony itself reveals that the whole matter

of the IRS liabilities, as to which Husband presented conflicting and

internally inconsistent testimony, shows that he may not even have the tax

liability he claims, and it is all a deliberate pattern to hurt and harm the Wife

in this very proceeding, to deprive her of that to which she is entitled under

the law.
 CONCLUSION—PRECISE RELIEF SOUGHT

In summary, Statement of the Case and Summary of the Argument provide

compelling arguments and cite judicial precedents as ample reason in

pleading the Superior Court to reverse and remand the case for re-hearing.
 APPENDIX

1. Equitable Distributions/Exceptions Transcript Dated January 21, 2015

2. Berkshire Capital Letter Dated March 22, 2013